This is the first of our new series of quarterly update blogs on the latest developments in freedom of information law under the Freedom of Information Act 2000 (FOIA) and the Environmental Information Regulations 2004 (SI 2004/3391) (EIR). The blog will enable readers specialising in freedom of information law to catch up on the most important cases, issues or developments in this area. Highlights in this post, which looks at freedom of information law developments from January 2013 to March 2013, include rulings on the test for vexatiousness and the government’s plans for the future of the freedom of information regime.
Please feel free to submit a comment below or contact us at firstname.lastname@example.org if you have any views on the cases, issues, or legal development that is covered, or if you think we have missed something that should be brought to the attention of freedom of information practitioners.
In this post, we look at:
- The government’s plans for the future of the freedom of information regime.
- Case law on:
- aggregation of public interests;
- the test for vexatiousness,
- the personal data exemption;
- the use of the unfinished documents and internal communications exceptions in a procurement context; and
- information requests in education and housing contexts.
- The latest publications from the Information Commissioner’s Office (ICO) and its monitoring of public authorities that are underperforming in responding to freedom of information requests.
The government has given some indication of its future plans for the freedom of information legislation, in the Justice Minister’s statement to the House of Commons on 24 January 2013. Its priority seems to be reducing the burden of the freedom of information regime on overstretched public authorities, and preventing private contractors from becoming subject to the regime. While contractors may see this as a victory, in practice, the pressure is on for parties to voluntarily disclose more than the law requires, with the government threatening legal measures if a voluntary approach is not successful.
The government’s intentions to block “industrial” (repeated) information requests may be a related attempt to crack down on press requests, or it may simply aim at reducing the hassle that the familiar faces of repeat requesters cause. Only time will tell. Changes are proposed within the next two years. If certain industrial requesters are blocked, it will be an interesting test of the principle that the freedom of information regime is generally applicant-blind; and could arguably lead to litigation over the right to request.
In the same statement, the Justice Minister suggested that the government may revise and clarify the use of the ministerial veto. This would provide some welcome clarity, as we wait and see whether the government uses the veto a second time to prevent details of the correspondence between the Prince of Wales and government departments being published.
This quarter, there has been some new freedom of information legislation in the form of the Freedom of Information (Amendment) (Scotland) Act 2013. The powers now given to Scottish Ministers may lead to some differences between the accessibility of information held by public bodies, depending on whether that body is Scottish or based elsewhere in the United Kingdom. This will be an issue to keep your eye on if you undertake cross-border work.
Public interest aggregation (Ian Helstrip v Information Commissioner and High Speed Two (HS2) Ltd (EA/2012/0201))
There was a welcome indication this quarter that it may be possible to aggregate the public interest factors under different FOIA exemptions, to look at the public interest overall. This would bring FOIA into line with the EIR, and it recognises that real life situations should not be viewed in a blinkered way, with each exemption in isolation. The overall public interest may be more than the sum of its parts. A more definitive ruling would now be good news.
- Upper tribunal provides guidance (Information Commissioner v Dransfield  UKUT 440 (AAC); Craven v Information Commissioner  UKUT 442 (AAC) and Ainslie v Information Commissioner  UKUT 441 (AAC))
There was a definitive and helpful ruling from the Upper Tribunal on the issue of vexatious and/or manifestly unreasonable requests this quarter. The confirmation that the test under FOIA and the EIR is the same (namely, whether the disputed request involves the “manifestly unjustified, inappropriate or improper use of a formal procedure”) is very useful. The judgments also remind information lawyers that background and context is key to whether a request can be refused, taking another step away from the legislation being completely applicant-blind. The judgments pragmatically try to delineate that fine line between using and abusing the freedom of information legislation.
- Taking account of prior correspondence (Ian Pratt v Information Commissioner (EA/2012/0133))
On the other side of that fine line, in Pratt, the First-tier Tribunal ruled that previous communications should not be taken into account in deciding on vexatiousness. Although this case was decided before the Upper Tribunal rulings in Dransfield, Craven and Ainslie, it did not rule out previous correspondence ever being relevant, so the rulings are not necessarily inconsistent. Overall, the tribunals again seem to be taking a realistic approach to what constitutes abuse of the freedom of information regime.
Personal data (Cialfi v Information Commissioner (EA/2012/0183))
Tribunal rulings regarding other freedom of information exceptions or exemptions this quarter tended to err on the side of non-disclosure. The personal data exemption was upheld when the First-tier Tribunal (Information Rights) held that details of attendees at skills training courses were personal data and therefore exempt from disclosure by virtue of section 40(2) of FOIA. The data were personal because either of the below tests applied:
- The objective of the courses was personal development and the participants would take the resulting skills with them when they moved to other employment.
- The requested data would reveal the nature and location of their work and the decisions they had made.
Procurement context (Wirral Metropolitan Borough Council v Information Commissioner  UKFTT 0117 (GRC))
We received case law guidance on the unfinished documents and internal communications exceptions under the EIR when it was ruled that draft reports, political background papers and council correspondence relating to a procurement exercise that did not go ahead did not have to be disclosed.
Again, this case is in line with the tribunals’ tendency this quarter to protect individuals’ information and avoid over-burdening public authorities when considering whether exceptions or exemptions apply. See below for information on new guidance on freedom of information and the Public Contracts Regulations 2006 (SI 2006/5).
Finally on case law this quarter, we also updated you on cases where:
- Information about free schools was ruled to be disclosable (Department for Education v Information Commissioner and another (EA/2012/0136, 0166 and 0167)).
- Data on vacant properties in a local authority’s area should not be published, to help prevent crime (Voyias v IC (Freedom of Information Act 2000)  UKFTT 2011_0007 (GRC)).
These cases illustrate that freedom of information requests are increasingly made in many different areas of a local authority’s responsibilities.
Information Commissioner’s Office
The ICO has produced some new guidance this quarter. See Legal updates:
- ICO guidance on personal data, refusing FOIA and EIR requests and EIR internal reviews.
- ICO publishes new guidance on EIR and on parliamentary privilege exemption under FOIA.
- ICO guidance on Public Contracts Regulations 2006.
- New ICO freedom of information guidance on information in public domain, personal data and government policy exemption.
The ICO may be hoping that this guidance has more success than ICO: When can a request be considered vexatious or repeated? (June 2012), which the Upper Tribunal hinted needed to be amended (in Dransfield (Wikeley J at paragraph 45)). We understand that the ICO is doing just that.
The ICO also “named and shamed” a list of public authorities that are not dealing with freedom of information requests quickly enough, and which it will be monitoring. This is a reminder that the ICO is willing to use its enforcement powers.